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The Rogak Report: 26 Dec 2007 (Part II) ** No Fault - Workers Compensation **

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  • Lawrence Rogak
    COURT REJECTS NO-FAULT INSURER S WORKERS COMP DEFENSE Westchester Medical Center a/a/o Manuel Castillo et al. v. American Transit Insurance Company, 2007 NY
    Message 1 of 1 , Dec 26, 2007


      Westchester Medical Center a/a/o Manuel Castillo et al. v.  American Transit Insurance Company, 2007 NY Slip Op 34131(U) (Supreme Court, Nassau County) (Edited by Lawrence N. Rogak) 

      In this no-fault suit, plaintiff hospital sought benefits for services and treatment rendered to Manuel Castillo between February 5, 2007 and February 7, 2007 for injuries allegedly sustained due to an automobile collision on February 5, 2007.  The hospital billed the insurer with Hospital Facility Form, N-F5 and a UB-92 on March 13 2007, which it has proof was delivered and signed for via Certified Mail, on March 20, 2007 for the sum of $3 534.85. It claimed that the insurer failed to either payor issue a Denial of Claim Form in a timely fashion.

      Plaintiff asserted that on April 5, 2007 the defendant issued a defective Denial of Claim, stating that Castillo was eligible for workers comp as the injury occured in the course of his employment.  Plaintiff claimed that this denial is clearly untimely. The plaintiff also argued that the Denial was not sent in the manner authorized by the Statute.

      Defendant argued that summary judgment was not appropriate as there is evidence that the Denial of April 5, 2007 was timely as sent within 30 days of the March 20 2007 receipt of the plaintiffs claim. It also argued that the denial was proper as there was evidence that the patient was eligible for workers compensation.

      "As noted by the plaintiff," held the Court, "the defendant has not provided or offered a workers' compensation policy that covers the assignor for the accident, and the evidence that he is covered by such is based on heresy [sic - I'm sure the Court meant "hearsay"] reports and speculation. Defendant provides an affidavit from its litigation representative who states that he believes that the Denial of Claim was mailed to the plaintiff within the proper 30 days, relying on his knowledge generally, that such a denial is prepared and mailed in accordance with PROGRESSIVE' s normal business practices."

      "Defendant provides copies of the request allegedly sent. There is no affidavit of service by any person with first hand knowledge ofthe facts who states that they personally mailed the Denial in question. Further, there is no certified mail receipt for the Denial. Defendant argues that this proof, based on a standard offce practice is acceptable. As noted by plaintiff, the facts set forth in the affidavit provided do not set forth a basis to accept these affidavits as evidence of their being kept as business records. In addition, as further noted by the plaintiff the Denial allegedly sent is deficient in failing to 'fully and explicitly' state why the entire claim was not being paid."

      Summary judgment was granted to plaintiff.

      Comment: Bad decision.  Once an insurer raises the issue that an auto accident victim may have been in the course of his employment, the court is supposed to refer the case to the Workers Compensation Board for a determination on that issue.  See:  http://groups.yahoo.com/group/TheRogakReport/message/1167

      Larry Rogak

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